CIRCULAR

GUIDING COMMODITY CLASSIFICATION ACCORDING TO THE LIST OF IMPORTS AND EXPORTS, THE PREFERENTIAL IMPORT TARIFF AND THE EXPORT TARIFF

Pursuant to the amended and supplemented Import and Export Tax Law passed by the X^th National Assembly on May 20, 1998;
Pursuant to the Customs Law passed by the X^th National Assembly on June 29, 2001;
Pursuant to Decision No.49/QD-CTN of March 6, 1998 of the President of the Socialist Republic of Vietnam on Vietnams adherence to the HS Convention;
Pursuant to the Governments Decree No.54/CP of August 28, 1993 and Decree No.94/1998/ND-CP of November 17, 1998 detailing the implementation of the Import and Export Tax Law;
Pursuant to the Governments Decree No.06/2003/ND-CP of January 22, 2003 providing for the classification of imports and exports;
Pursuant to the Governments Decree No.77/2003/ND-CP of July 1, 2003 defining the functions, tasks, powers and organizational structure of the Finance Ministry;
The Finance Ministry hereby guides the classification of imports and exports as follows:

A GENERAL PROVISIONS

I. GENERAL PROVISIONS

1. Vietnams list of imports and exports is made on the basis of the List of the Harmonized Commodity Description and Coding System (abbreviated to HS List) of the World Customs Organization (WCO), the 2002 version, and is detailed to the level of at least 8 (eight)-digit codes.

2. The commodity classification principles prescribed in this Circular shall apply to commodity classification according to the list of imports and exports, the preferential import tariff, the export tariff and the lists of goods entitled to special preferential tax rates already committed by Vietnam with other countries or regional or international economic organizations.

3. This Circulars provisions on imports-exports classification shall apply to the domains of customs (including classification before goods import or export, classification in the process of carrying out customs procedures and post customs clearance classification), tax, commercial statistics and other State management domains related to goods import-export activities.

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1. The list of imports and exports is composed of:

1.1. Six (6) general rules (Appendix 1 to this Circular);

1.2. Compulsory notes (at the beginning of sections and chapters of Vietnams list of imports and exports);

1.3. The detailed list of commodities.

2. The detailed list of commodities and preferential import tariff is composed of 21 sections, 97 chapters (of which Chapter 77 is a reserve one), headings, subheadings and the detailed list of commodities.

3. The list of imports and exports and the preferential import tariff shall be divided into five columns:

- The first column contains codes of headings;

- The second column contains codes of 6-digit subheadings;

- The third column contains codes of 8-digit subheadings;

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- The fifth column contains calculation units (for the list of imports and exports) or tax rates (for the preferential import tariff).

4. The export tariff:

Particularly for the export tariff, a complete list shall not be made according to Vietnams list of imports and exports and only those headings subject to export tax shall be detailed. The export tariff shall be divided into four columns:

- The first column contains the ordinal numbers of the headings subject to export tax.

- The second column contains commodity descriptions.

- The third column contains headings subject to export tax and their codes.

- The fourth column contains export tax rates.

III. INTERPRETATION OF A NUMBER OF DEFINITIONS

1. Headings

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Example: Heading Precious metal ores and concentrates is coded 2616, of which the first two digits (26) constitute the chapters code (chapter No. 26 of the list of commodities), the last two digits (16) constitute the code defining the position of that heading in the chapter (heading No. 16 of the chapter).

2. Subheadings coded with 6 digits (6-digit subheadings):

- Each heading may be detailed or may not be detailed into many 6-digit subheadings.

Example: Heading -Sheep is coded 010410, of which the first two digits (01) constitute the code of the chapter (chapter No. 01), the subsequent two digits (04) constitute the code defining the position of that heading in the chapter (heading No. 4 of the chapter), the subsequent two digits (10) define the position of that subheading within the heading (the first subheading of the heading).

- There are two ways of classifying and coding subheadings, which are also called level-1 subheadings and level-2 subheadings, in which:

Level-1 subheadings have zero (0) as their last digit and are signified by 1 dash (-) in the commodity description column (column 4).

Example: Subheadings 0101.90, 1901.10, 8703.10.

In cases where a level-1 subheading is further detailed into level-2 subheadings, this level-1 subheading shall not be coded but signified by one dash (-) in the goods description column because it is further divided into 3 level-2 subheadings, for example: 1604.11, 1604.12 and 1604.13.

Level-2 subheadings have 1, 2, 3, 4, 5, 6, 7, 8 or 9 as their last digit and are signified by two dashes (--) in the commodity description column.

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3. Subheadings coded with 8 digits (8-digit subheadings):

3.1. For a number of headings in the list of commodities, that are not detailed into 6-digit subheadings but 8-digit subheadings instead, these subheadings shall, besides bearing the heading codes, are coded with four more digits: 00X0 (of which X is one of such digits as 1, 2, 3, 4, 5, 6, 7, 8 or 9).

Example: Heading 7905 Zinc plates, sheets, strips and foils is not detailed into 6-digit subheadings but into 8-digit subheadings and coded as 7905.00.10 - Wire and rods, not surface treated and 7905.00.90 - Others

3.2. Many 6-digit subheadings in the List of commodities are detailed into 8-digit subheadings according to the dash system as follows:

- 8-digit subheadings belonging to level-1 (one dash) 6-digit subheadings shall start with the two-dash level (--) in the commodity description column (column 4);

- 8-digit subheadings belonging to level-2 (two dashes) 6-digit subheadings shall start with the three-dash level (---) in the commodity description column (column 4).

Example: Heading --carrot coded 0706.10.10 belongs to level-1 (one dash) 6-digit heading 0706.10 and starts with two dashes in the commodity description column, of which the first two digits (07) are the chapters code: chapter No. 07; the subsequent two digits (06) indicate the position of that heading in the chapter: heading No. 06; another subsequent two digits (10) indicate the position of the 6-digit subheading within the heading: the first position; and the last two digits (10) indicate the position of subheading carrot within the 6-digit subheading: the first 8-digit subheading.

3.3. Depending on the extent of detailing of commodities, the 8-digit subheadings shall be detailed into 3-dash 8-digit subheadings (---); 4-dash 8-digit subheading (----); 5-dash 8-digit subheading (-----) or 6-dash 8-digit subheadings (------).

Example: Commodities under heading 8704 are detailed to the 5-dash 8-digit subheadings (8704.22.11, 8704.22.12) and 6-dash 8-digit subheadings (8703.90.62, 8703.96.63).

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Example: Subheading 0106.11 -- Primates shall be added with 00 in the end, into 0106.11.00.

3.5. In cases where headings are neither detailed into 6-digit subheadings nor 8-digit subheadings, four zeros (0000) shall be added to the end of such headings.

Example: Heading 1004 Oats, which is neither detailed into 6-digit subheadings nor detailed into 8-digit subheadings, shall be added with four zeros (0000) to its end and turn into: 1004.00.00

4. Tax rates

4.1. Import tax rates:

Import tax rates prescribed in the import tariff are the preferential tax rates promulgated by the Finance Ministry. The preferential tax rates shall apply to those headings which are not divided into 6-digit subheadings nor 8-digit subheadings; or to 6-digit subheadings if such subheadings are not divided into 8-digit subheadings; or to 8-digit subheadings if the headings or 6-digit subheadings are divided into 8-digit subheadings.

The principles for commodity classification for the application of common, preferential or particularly preferential import tax rates shall uniformly comply with the guidance in this Circular.

4.2. Export tax rates:

Headings with their names and codes not specified in the export tariff are those entitled to the tax rate of 0% (zero per cent). Headings with their names clearly inscribed in the export tariff are those subject to export tax.

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I. CLASSIFICATION PRINCIPLES

1. General principles:

1.1. When classifying imports or exports to determine commodities codes according to the list of imports and exports, the preferential import tariff or the export tariff, the following principles must be observed:

- Compliance with Vietnams list of imports and exports; the preferential import tariff or the export tariff.

- Compliance with 6 general rules of the HS Convention;

- Compliance with the compulsory notes of the HS Convention.

1.2. Besides the above-mentioned bases, when classifying commodities, the additional notes of the ASEAN Common Effective Tariff issued together with Appendix 2 to this Circular and the detailed notes of the HS System of the WCO should be referred to.

1.3. A commodity must, after classification, have a full code of 8 digits and shall be arranged into only one code according to Vietnams list of imports and exports.

1.4. For exports: In cases where an export commodity is not specified in the list of export tariff, the customs declarers shall, when filling in customs procedures, still have to declare the name of that commodity and its code according to Vietnams list of imports and exports.

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2. Separate provisions shall apply to a number of imports as follows:

2.1. Classification of complete and synchronous equipment

2.1.1. Classification principles

2.1.1.1. Imports being a collection of machines under headings and subheadings of Chapter 84, 85, 86, 88, 89 or 90 of the current Preferential Import Tariff are entitled to the application of the principle of classification according to the main machines for import tax calculation.

In case of importing goods lots of complete equipment that comprises different machine collections or different chains, of which each collection/chain has one main machine, such goods lots shall be classified into groups of machines and equipment corresponding to each chain for tax calculation strictly according to the above-guided principle.

In cases where the main machine is subject to an import tax rate higher than that applicable to other machines and equipment in the imported machine collection, enterprises may conduct classification according to the main machine or according to each machine.

If an imported lot of complete and synchronous equipment includes, apart from the machine and equipment collection, also supplies, raw materials, materials, accessories, fuels, workshops or automobiles, only the principle of classification according to the main machine shall apply for the calculation of import tax on machine collections belonging to Chapters 84, 85, 86, 88, 89 and 90 of the current preferential import tariff; this principle shall not apply to the calculation of import tax on imports being supplies, raw materials, materials, accessories, fuels, workshops or automobiles (these commodities shall be subject to the principle of classification according to the codes prescribed for them in the current preferential import tariff).

2.1.1.2. A machine collection entitled to the application of the principle of classification according to the main machine must include at least two machines and/or equipment under one or many headings or subheadings of Chapter 84, 85, 86, 88, 89 or 90 of the current preferential import tariff. Such a machine collection may be a combination (for example: the combination of video-transmitting machines includes receivers, transmitters and cameras, the combination of cigarette-making machines includes cigarette-processing machines, rolling machines and packing machines, ) or may be a chain (for example: a clothes-making chain includes sewing machines, overcasting machines, buttonhole-stitching machines, button-sewing machines, designing machines, sewing tables, cutting machines, power generators). The different machines of this machine collection are interrelated and support one another to concurrently or continually perform their particular functions as well as the function of the entire system.

2.1.1.3. The machine collections entitled to the application of the principle of classification according to the main machines mentioned at Points 2.1.1 and 2.1.2 may:

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b/ Be imported and concurrently manufactured at home or procured from the domestic market but must meet three following conditions:

- The main machine must be an imported machine;

- The collection of imported and home- made machines and equipment or those manufactured and procured at home constitutes a combination or a chain of machines and equipment that are interrelated and support one another to concurrently or continually perform their particular functions as well as the function of the entire system;

- Subjects using the collection of imported and home- made machines and equipment or purchasing home-made equipment must themselves declare and take responsibility before law for the machines they manufacture or purchase in the country, the name of the manufacturers or suppliers and shall take responsibility before law for such declaration. If making false declarations, they shall, apart from retrospectively paying import tax strictly according to the code of each machine or equipment as prescribed in the import tariff at the time of retrospective tax collection, be also administratively sanctioned or examined for penal liability under current provisions of the Import and Export Tax Law and relevant legal documents.

2.1.2. Procedures and dossiers for commodity classification and import tax calculation according to main machines

Imports being complete and synchronous equipment entitled to import tax calculation according main machines must be accompanied with all the following dossiers:

2.1.2.1. The economic-technical explanations or project of investment in the complete or synchronous equipment, approved by the competent agency, which must clearly state the names of machines and/or equipment imported, domestically manufactured or domestically procured. The enterprise must produce the original documents for the customs office to make comparison before carrying out the import procedures.

2.1.2.2. The written certification of the main machines of imported lot of complete or synchronous equipment by the specialized management agency. The enterprise shall submit the original of such certification to the customs office when filling in the import procedures. The specialized management agency is the agency specialized in managing the use of imported machines and/or equipment, which may either be a ministry or a provincial/municipal service. The specialized management agency shall take responsibility before law for its certification.

Example: If joint-stock enterprise X in Hanoi city imports a collection of beer-making machines, the agency certifying main machines shall be the Industry Ministry or the municipal Industry Service, not the municipal Peoples Committee. If joint-venture company B located in Quang Ninh province imports a brick-manufacturing chain, the agency certifying main machines of that chain shall be the Ministry of Construction, not the Ministry or the provincial Service of Planning.

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2.1.2.3. The import contract (direct or entrusted), the packing list and other vouchers (if any), which clearly inscribe the names of imported machines and/or equipment (with originals to be submitted to the customs office).

2.1.3. Tax calculation

2.1.3.1 Basing itself on the dossiers prescribed at Point 2.1.2 above and the results of inspection of commodities actually imported or concurrently imported and domestically manufactured or domestically procured (if any) under the provisions of this Circular, the customs office that carries out the import procedures shall calculate tax on the collection of the complete or synchronous machines and equipment according to main machines and shall open books to monitor the actually-imported commodities according to the list of to be-imported commodities already approved by the agency that has ratified the economic-technical explanations or investment project.

2.1.3.2. If doubting that the certification by the competent agency is inaccurate, the customs office carrying out the import procedures shall still temporarily calculate tax according to the certified main machines and concurrently notify such to the certifying agency and report such to the General Department of Customs for handling. If problems still exist, the General Department of Customs shall report thereon to the Finance Ministry so that the latter may work with relevant ministries and branches for handling thereof.

In cases where certification by the competent agency is inappropriate, import tax shall be recalculated. If the paid import tax amount is larger than the tax amount payable at the recalculated tax rate, the unit that has imported complete or synchronous equipment shall enjoy tax reimbursement or have the excessive amount subtracted from their tax amount payable for the subsequent goods lot. If the paid tax amount is smaller than the amount payable at the recalculated tax rate, the customs office shall retrospectively collect tax arrears on the commodities having gone through the import procedures.

The retrospective tax collection, tax reimbursement or withholding shall comply with the provisions of the Import and Export Tax Law.

2.1.3.3. Those units which declare the importation of collections of complete or synchronous machines and/or equipment for calculation and payment of import tax according to main machines and which do not actually use such machines and/or equipment as a combination or chain but use them separately shall, besides subjecting to retrospective payment of import tax strictly at the tax rate prescribed for each machine, be administratively handled or examined for penal liability according to current provisions of the Import and Export Tax Law and relevant legal documents.

2.1.3.4. The Finance Ministry shall coordinate with the concerned ministries and branches in specifically handling the application of the principle of classification according to main machines to cases of importing machine collections of complete or synchronous equipment other than those under headings or subheadings of chapters 84, 85, 86, 88, 89 and 90 of the current preferential import tariff (For example: Complete gas pipe-equipment).

2.1.3.5. The collections of machinery and/or equipment under headings or subheadings of chapters 84, 85, 86, 88, 89 and 90 of the current preferential import tariff, if entitled to the application of the principle of classification according to main machines for import tax calculation under the provisions of this Circular, shall also be considered synchronous equipment in order to serve as basis for determination of objects not liable to value added tax (VAT) according to the provisions of the VAT Law.

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Sets of synchronous and asynchronous spare parts (being either complete for assembly of mechanical, electrical and electronic equipment or incomplete but having basic properties of complete equipment for assembly with such simple tools as screws, bolts, nuts, or with rivets or by welding), shall be classified according to the following principles:

2.2.1. If synchronous details and/or spare parts (all details of a product) are imported, they shall be classified into the same heading/subheading with the same code and the same tax rate set for the complete commodity.

2.2.2. If asynchronous details and/or spare parts (not all the details or spare parts of a product) are imported, they shall be classified according to each heading/subheading with the code and tax rate prescribed separately for each of them.

2.3. Classification of component sets of mechanical, electrical and electronic commodities according to the policy of localization rate-based preferential tariff

Asynchronous component sets registered by enterprises for the application of the policy of localization rate-based preferential tariff, when imported, shall enjoy the same localization rate-based preferential tax rate, applicable to the entire list of the imported components.

II. BASES OF CLASSIFICATION

The commodity classification, depending on each specific case, shall be based on one or many of the following:

2.1. Vietnams list of imports and exports; the preferential import tariff; the export tariff.

2.2. The actual commodities;

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2.4. The results of commodity analysis and expertise.

III. COMMODITY CLASSIFICATION IN THE PROCESS OF CARRYING OUT CUSTOMS PROCEDURES

1. For customs declarers

1.1. Customs declarers shall have to classify commodities (accurately determine names, descriptions and codes of imports or exports) in the customs declaration forms and be responsible for such classification.

1.2. In cases where customs declarers cannot classify commodities by themselves, if they fail to request customs offices to conduct commodity classification before filling in the customs procedures as prescribed in Section IV, Part B below, they may request a specialized expertising agency or organization to conduct expertise, which shall serve as basis for them to classify commodities.

1.3. In cases where customs declarers disagree with classification conclusions of customs offices, they may lodge complaints thereabout according to the provisions of Part D, this Circular.

2. For Customs Sub-Departments carrying out import/export procedures

2.1. When carrying out customs procedures for imports or exports, customs officers must base themselves on the provisions of the Governments Decree No. 06/2003/ND-CP of January 22, 2003 and the guidance in this Circular to conduct classification. If not accepting the commodity classification by customs declarers, they must have reasons therefor and conduct re-classification to make it accurate.

2.2. If having grounds to believe that the commodity classification by customs declarers is inaccurate but being unable to conduct such classification by themselves, Customs Sub-Departments shall request the Commodity Analysis and Classification Center under the General Department of Customs (hereafter call the CAC Center for short) to conduct commodity classification. The procedures of requesting the CAC Center shall comply with the Regulation on commodity analysis and classification issued by the General Department of Customs.

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2.3. If detecting that the results of commodity classification by the CAC Center is inaccurate and unsuitable to the actual imports or exports, they shall report such to the General Department of Customs for direction.

IV. CLASSIFICATION OF COMMODITIES BEFORE IMPORTATION OR EXPORTATION THEREOF

The classification of commodities before importation or exportation thereof (hereafter called advance classification for short) shall apply to cases where customs declarers have not yet filled in the customs procedures for commodity import or export.

1. Advance classification in case of commodity-specimen availability

1.1. Procedures:

- Customs declarers requesting advance classification shall send their written requests (made according to a set form) together with commodity specimens and relevant documents to the Customs Sub-Departments where customs import/export procedures are to be carried out for the latter to conduct classification.

- The Customs Sub-Department receiving the above requests shall conduct commodity classification and issue classification-result notices (according to a set form) to customs declarers.

If being unable to conduct classification, the Customs Sub-Departments shall request the CAC Center to do it.

1.2. Validity of advance classification-result notices

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For commodities that quickly change or deteriorate, the notices validity duration shall be shorter (depending on the nature of commodities and conditions for commodity preservation, the Customs Sub-Departments conducting classification shall decide on the validity duration of notices on a case-by-case basis.)

1.3. Conditions for application of advance classification results:

- The specimens are in their status quo. Such specimens may be kept at the Customs Sub-Departments or at enterprises or in warehouses of transporters, if they meet the customs sealing requirements and get approved by the directors of the Customs Sub-Departments.

- The actual imports or exports are determined by the Customs Sub-Departments as the right commodities, which have already been classified.

- During the time after a customs office issues advance classification-result notice and before the custom declarer fills in customs procedures for actual commodity import or export, the law provisions on commodity classification applicable to the already classified commodities remain unchanged.

- The customs offices detect no errors or false declaration made by customs declarers or errors made by themselves during the advance classification.

1.4. Regulations on specimen keeping:

- In cases where customs offices directly conduct classification, the duration of specimen keeping at border-gates shall be one year as from the time such specimens are received. For commodities that quickly change or deteriorate, the specimen-keeping duration shall be the validity duration of the advance classification-result notice.

- In cases where the CAC Center conducts classification at the request of the Customs Sub-Departments, the duration of specimen keeping at the Customs Sub-Departments shall comply with the General Department of Customs Regulation on commodity analysis and classification, issued together with Decision No.710/TCHQ/QD-PTPL of June 3, 2003.

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The procedures of requesting advance classification shall comply with the provisions of Point 1.1 above.

After accepting the customs declarers requests as well as documents and information necessary for commodity classification, the Customs Sub-Departments shall assign experts to directly examine and take photos of commodities, and conduct commodity classification, then notify the classification results to customs declarers.

If the Customs Sub-Departments are unable to conduct classification, they shall request the CAC Center to do it.

3. Advance classification in case of unavailability of commodity specimens

The procedures for requesting advance classification shall be the same as for cases of specimen availability. In this case, customs declarers should describe in detail commodities in the written requests for advance classification and supply necessary documents and information to the Customs Sub-Departments. If there are insufficient bases for classification, the Customs Sub-Departments shall have the right to refuse the customs declarers requests.

Advance classification-result notices in cases where no commodity specimens are kept at the customs offices shall be valid for reference when carrying out customs procedures.

C. POWERS AND RESPONSIBILITIES OF ORGANIZATIONS AND INDIVIDUALS IN COMMODITY CLASSIFICATION

I. RIGHTS AND OBLIGATIONS OF CUSTOMS DECLARERS

1. Rights of customs declarers:

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- To be guided by customs offices in commodity classification when requested.

- To lodge complaints under law provisions and guidance in Part D of this Circular.

2. Obligations of customs declarers

- To classify commodities and make customs declarations in strict compliance with law provisions and guidance in this Circular, and take responsibility before law for their classification results.

- To execute commodity-classification decisions of customs offices in the course of filling in commodity import-export procedures.

- To supply commodity specimens, related vouchers and documents for the purpose of commodity classification and tax calculation at the requests of customs offices.

II. RESPONSIBILITIES AND POWERS OF CUSTOMS SUB-DEPARTMENTS IN CARRYING OUT COMMODITY IMPORT-EXPORT PROCEDURES

1. To examine the results of commodity classification, tax calculation and payment by customs declarers.

2. To guide customs declarers in classifying commodities when the latter so request.

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4. To classify commodities, apply tax policies and relevant management policies in strict compliance with law provisions and guidance in this Circular.

5. To report to the General Department of Customs on the results of classification of commodities that have undergone import-export procedures for the first time at their respective Customs Sub-Departments for summarization and direction of application to the entire customs service.

D. COMPLAINTS AND SETTLEMENT OF COMPLAINTS

Customs declarers who disagree with customs offices classification conclusions shall have the right to lodge complaints according to law provisions and the following order:

1. Customs declarers who disagree with classification conclusions of Customs Sub-Departments shall file written requests to the directors of the Customs Sub-Departments that carry out customs procedures for the lots of commodities for re-consideration.

2. If customs declarers disagree with the complaint settlement by Customs Sub-Departments as prescribed in Item 1 above, they may file written requests to the directors of the relevant provincial/municipal Customs Departments for settlement.

3. If customs declarers disagree with the complaint settlement by the directors of the provincial/municipal Customs Departments prescribed in Item 2 above, they may file written requests to the General Director of Customs for settlement.

4. If customs declarers still disagree with the settlement by the General Director of Customs as prescribed in Item 3 above, they may file written requests to the Finance Minister for settlement. The Finance Ministers decisions shall be the final ones.

In cases where customs declarers disagree with the results of complaint settlement by customs offices of all levels, they may initiate lawsuits at courts according to the provisions of law.

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E. ORGANIZATION OF IMPLEMENTATION

This Circular takes effect 15 days after its publication in the Official Gazette. To annul the previous regulations on imports-exports classification, which are contrary to the provisions of this Circular.

In the course of implementation, if any problem arises, units, organizations and individuals are requested to promptly report it to the Finance Ministry for settlement./.